Trump expanded mandatory immigration detention. Will the Supreme Court uphold it?

On Oct. 1, the Supreme Court granted the government’s request for a review of a Second Circuit Court decision holding that the mandatory detention provision in federal law does not apply to aliens who have been living illegally in the U.S. long-term.

The alien involved in this case is Ricardo Aparecido Barbosa da Cunha, a Brazilian citizen who entered the U.S. 20 years ago without being lawfully admitted and has lived here ever since. U.S. law provides that “if the examining immigration officer determines that an alien seeking admission is not clearly and beyond a doubt entitled to be admitted, the alien shall be detained” pending removal proceedings. 

But how can he be treated as an applicant for admission if he has been here for 20 years? The section of U.S. Code headlined “Aliens treated as applicants for admission” specifies that “An alien present in the United States who has not been admitted … shall be deemed for purposes of this chapter an applicant for admission.”

“Admission” is defined in federal law as “the lawful entry of the alien into the United States after inspection and authorization by an immigration officer.”

However, according to the Second Circuit, Barbosa da Cunha is not “an applicant for admission” because he is not actually “seeking admission.” Therefore, the court says, his detention is governed instead by another provision of U.S. law permitting discretionary release on bond or on conditional parole. And nothing in the language limits this privilege to previously........

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